I move, That the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2) be now read a third time. The first objective of these bills is to align New Zealand’s procedures for registering trademarks with international standards to minimise regulatory and business compliance costs associated with the protection of trademarks.
This legislation, which was formerly the Trade Marks (International Treaties and Enforcement) Amendment Bill, amends the Trade Marks Act to implement the international registration regime for trademarks provided for by the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol). The Madrid Protocol is designed to assist business exporting to several countries at one time by providing a simplified procedure to protect their trademarks overseas. Joining the Madrid Protocol will provide New Zealand businesses with the opportunity to have their trademarks protected in up to 82 countries by filing one application in English with the Intellectual Property Office of New Zealand—
Can I just remind members that it is a convention of the House that if they wish to have conversations that are not related to the issue at hand, they should take them outside and show some courtesy to the member who is trying to address the Chamber.
I thought I was doing OK, Mr Assistant Speaker, but, anyway, thank you for your assistance.
Businesses will still be able to apply for trademark protection directly in each of these countries, as is currently the case. The Trade Marks Act is also amended to align domestic registration procedures with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, and of course the Singapore Treaty on the Law of Trademarks. By joining these World Intellectual Property Organization, or “WIPO”, treaties, the Government is sending a strong message to the world that New Zealand has a credible and efficient regime for the protection of trademarks.
The second objective of these bills is to provide for the increased enforcement of the criminal offences under the Trade Marks Act and the Copyright Act. Counterfeiters make victims of legitimate businesses and innocent consumers. Counterfeit goods can be of poor quality, and many of these products can also represent a serious risk to the safety of consumers. Internationally there is also evidence that the trade in counterfeit goods is linked to more serious organised crime. It is the intention of the Government not to allow New Zealand to become an easy target for counterfeit and pirated works, and this is particularly timely legislation prior to the Rugby World Cup.
In recognition that the majority of counterfeit goods sold in New Zealand are sourced from overseas, the legislation provides new enforcement powers to the New Zealand Customs Service, I say to Mr Williamson. The legislation clarifies that customs officers are able to seize counterfeit goods and pirated works at the border and undertake investigations to enable importers of such goods to be prosecuted. Customs officers will also be able to require any person connected with the importation of the goods to produce documents concerning those goods or to answer questions. These powers complement the existing border enforcement powers available to them under the Customs and Excise Act 1996.
These bills will provide enforcement officers employed by the Ministry of Economic Development, as well as the police, with tailored investigative powers under the Copyright Act and the Trade Marks Act to gather evidence to bring criminal prosecutions against counterfeiters. I envisage that once these bills are enacted, the Customs Service and the Ministry of Economic Development will work cooperatively alongside the police and right-holders to tackle the counterfeit goods and pirated works industry.
I take this opportunity to particularly thank the officials for the work they have done on this legislation over a long period of time, in particular George, who will know to whom I refer. I commend these bills to the House.
I rise to speak to the third readings of the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2), which arise from the Trade Marks (International Treaties and Enforcement) Amendment Bill. I wish to make a couple of comments, because in the time between the introduction of this legislation and its passage now there has been a great deal more discussion about the importance of trademarks and intellectual property, particularly in the context of the Trans-Pacific Partnership agreement negotiations.
I will touch on that for a moment, because it is pertinent to the purposes and the functioning of this legislation. This legislation was introduced on 8 September 2008, under a Labour Government. Labour is supporting this legislation; it was originally ours. Its first reading occurred on 7 April 2009. After that it was referred to the Foreign Affairs, Defence and Trade Committee for consideration, and we on that committee reported back on 15 September 2009. So within about 5 months of the introduction of the legislation we had received submissions, we had deliberated, we had taken extensive official advice because there were some tricky pieces in this legislation, and we had reported back to the House. The report back to the House from the Foreign Affairs, Defence and Trade Committee said under the heading “Commencement clause” that there was discussion on a number of clauses that required implementation by Order in Council—in other words, regulatory items that would not come before Parliament. They were largely procedural matters. But we went on to say that having considered whether these things should be implemented by Order in Council or go before the full Parliament, we accepted that there were valid reasons for commencement by Order in Council, and we said: “[we] urge the Ministry of Economic Development to implement all aspects of the legislation expeditiously.”—expeditiously. That was 15 September 2009.
This legislation had been sitting for 2 years, almost to the day, before it started to get its second reading. Its second reading was on 16 August of this year, 2011, under urgency. Why did the Government suddenly wake up and think that this legislation—which had been languishing on the Government’s Order Paper for 2 years, with the Government having been urged by the select committee to implement it expeditiously—would need 2 years later to be resurrected under urgency and put through? We have heard no explanation at any time from any of the members opposite or from the Minister in charge of the legislation, the Minister of Commerce, as to why a 2-year delay has occurred in the course of the procedure of this legislation.
The other point I make is that this trademarks legislation has three particular purposes. One purpose is for New Zealand to sign up in a timely way—but here we go, 2 years late—to three international trademark treaties. Its purpose is also to enhance the existing enforcement provisions in the Trade Marks Act and the Copyright Act in order to address the issues of the counterfeiting of registered trademarks and the piracy of copyright-protected works. There are a number of technical issues, as well, that are addressed in this legislation.
There is a different colour, a different complexion, now being cast on the issues of intellectual property, because of wide-ranging debates on the Trans-Pacific Partnership agreement, particularly chapters in the negotiations relating to intellectual property. We need to be very careful that everything we do relating to intellectual property protects the creative industries and those who wish not to have their creativity pirated, but at the same time we need to allow for opportunities for trade.
I ask this Government in the short time it has left before the election to ensure that this legislation meets the changed climate around intellectual property. We must not be in the position, having passed what I think is basically good legislation, of trading away our right to copyright protection and trademark protection under the Trans-Pacific Partnership agreement. We know that intellectual property questions are being raised routinely and vociferously by non-governmental organisations, which have a right to be involved and a right to be heard in the process of negotiating the Trans-Pacific Partnership agreement. There are real concerns in this area, and New Zealand needs to be cognisant of them. We need to be sure that we are not trading away, either consciously or unconsciously, anything that undermines our sovereign rights as a country.
This legislation brings us into line with international treaties, and that is a good thing. The protocol relating to the Madrid Agreement and the Singapore Treaty on the Law of Trademarks are important and we need to be consistent with them, but let us not ignore the fact that the narrative is changing around these issues. This is not an area of debate that is cast in stone. It is not an area of debate of the kind where once the treaty is signed that is the end of it, that is the full stop.
This is a dynamic discussion. Issues to do with intellectual property are being revisited daily by countries apart from New Zealand—not just New Zealand, and not just our non-governmental sector. Those issues are being questioned by academics around the world, and we need to be sure that nothing we do in the passing of this legislation, or in the signing of any free-trade agreements in the future, undermines New Zealand’s sovereignty, or undermines our right to protect trademarks, creative products, and industries that can trade in the knowledge sector, not just in the commodity sector.
The legislation is OK as far as it goes. The legislation does what it needs to do, in technical terms. I just alert this House to the fact that these discussions are not over. Thank you.
I say from the outset that counterfeiting is always a vexed issue with the general public. If they think of counterfeiting at the level of someone bringing in a fake pair of Reeboks—they would be pretty tatty and fall apart, and so on—in his or her luggage at some stage, they do not think there is much wrong with that. But what I think is really important for the public to realise is that the trade in counterfeited and pirated goods is not only increasing in volume to very huge levels but also becoming very much more sophisticated, and it poses huge threats to public safety. I will cover some of those huge threats to public safety in the future. So if there is anybody out there who thinks “Oh dear God, the Government is now trying to stop someone with a pair of fake Reeboks, or whatever.”, that is not what this legislation is about.
First, let us get the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2) in perspective. Counterfeiting, as I said, is a major growth industry, with the International Chamber of Commerce estimating that counterfeiting accounts for between 5 percent and 7 percent of all world trade. It is worth an estimated value of about US$650 billion a year, and is projected to increase to about US$1.7 trillion by the year 2015. So to get it into perspective straight away, we are not talking about nickels and dimes here; we are talking about very, very large sums of money. Those estimated costs, by the way, do not attempt to include the losses to any of the businesses that developed the intellectual property or are associated with the counterfeiting or the piracy. The chamber also estimates that approximately 2.5 million jobs have been destroyed by counterfeiting and piracy, so for those of us who are worried about employment around the world, that also is a matter that I think is important. Counterfeiting and piracy are insidious activities, although, as I said before, at the trivial end of it—the one-off, or someone who happens to get a fake Rolex or whatever—most New Zealanders say that it does not really matter, and so on. But I can tell the House that those are not victimless crimes.
Quite recently there has been a very, very big move, a very big shift, away from what we used to see as the luxury items—you know, the fake Rolex watches, the fake Gucci sunglasses, or whatever. Now there is a move towards a big industry of counterfeited medicines, food products, electrical goods, toys, automotive parts, and even aeroplane and helicopter parts. I say to everyone out there listening to be very, very thankful that such rules are coming into place, because it would be quite easy for someone to put a very third grade, very low-level-of-safety piece of gyro-equipment into a helicopter and say that it was a genuine piece of whatever the Maserati equivalent of helicopter products is. Everyone would think they had bought and paid for that, but it would turn out to be a complete counterfeit and after a couple of hours in the air it would snap, give up, and there could be quite a loss of life.
So it is not just medicines—we all know that fake medicines cause major mayhem. I think the one that brought a bit of a smile to my face, but that was also a bit shocking, was a year or two ago when I saw on the news that some counterfeit Viagra had been intercepted that was made mainly from bird droppings. The major constituent—
Mr Hide asked whether it worked. I do not know whether it worked, but Viagra’s main constituency for the fake counterfeit was bird droppings. It was in the news—I see Paula Bennett looking quite quizzical about it, but it is true. I have to say that if people rely on certain medications for their heart illnesses, or if they have respiratory illnesses or something, it is a very serious issue that consumers may be taking a very well-known brand or product for their illnesses but it turns out they are taking a complete fake or knock-off that cost a couple of cents. It could be made of bird droppings or something else, and it could endanger lives.
So counterfeiting is a very big issue. It is not something that we should just put to one side and say that it does not do any harm. Counterfeiting is not a victimless crime. It is not a victimless crime in a number of other areas either. I know the Greens will be concerned about the no-victim crime area when it comes to some of the goods that are produced in sweatshops overseas by labourers who are paid almost nothing, and who have no basic human rights or laws protecting them. A greater and greater number of these counterfeit goods are coming out of those appalling conditions where people are treated in subhuman ways.
So I am delighted that we have reached the third reading of the legislation and that we are bringing into law these protection bills. I know that the Trade Marks Amendment Bill is coming in specifically with regard to the Rugby World Cup, to make sure there are no counterfeits in relation to some of the products there. Even in one of my other portfolios, the building and construction portfolio, we have had a couple of alerts along the way of fake electrical goods—fake electrical transformers, and so on—that look as if they are the real thing. They can be bought quite cheaply and consumers put them into their houses, but who knows? Three or 4 months later those goods could end up bursting into flames and burning a house down. People thought they were buying the Rolls-Royce of electrical equipment, but it turned out to be a complete fake—and I have already covered things like motor car parts and helicopter parts.
I will just talk about the current border protection notice regime. Under the current copyright and trademarks legislation, certain border protection measures are prescribed. Copyright and trademark owners lodge a border protection notice with the Customs Service. The notice regime is designed to facilitate copyright and trademarks owners taking civil action against the importers of counterfeit goods. Under the notice regime, customs officials detain suspected items and formally determine where the suspected infringing goods appear to be subject to a notice. Then the goods are detained for a period of 10 working days, pending civil action by the rights-holder against the importers of those goods. Importers are informed of the detention of their shipment and have the option of voluntarily forfeiting the suspected shipment to the Crown.
Current estimates show that about 85 percent of detained shipments are concluded by the importer using the voluntary forfeiture mechanism. Under the current law, in the absence of voluntary forfeiture by the importer or any legal action taken by the rights-holder, the Customs Service must release the detained goods to the importer. Others import only enough stock at one time to run an online auction site or a stall. I think that is an interesting thing too. If they are bringing in small parcels of these counterfeits, people rely on the fact that customs officers will pick up on only one in every so many and, therefore, it is actually worth the risk. If those importers are bringing in one parcel every 3 or 4 days, and if one in every five gets intercepted and is forfeited, then the importers are making such good margins on counterfeit property that it is worthwhile letting it go.
This bill will bring up to date, into modern law, our protection of those legitimate products that have been made by legitimate companies who put their money into research and development, and who put a lot of work into developing a product. I think the idea that now that one has developed something of real value it should be free domain, or actually able to be copyright breached and so on, is an anathema to a country like New Zealand, where we want to especially protect a lot of the patents and the properties that we develop. I fully support the third reading of the bill.
I have listened with intent to the Minister of Customs and his contribution to the debate. It was, as usual, an informative contribution. We were told, in some detail, of the evils of counterfeiting, and the fact that it is not a victimless crime, the fact that one’s helicopter might fall out of the sky, and so on. It was then the Minister of Customs’ pleasure to welcome the passage of the legislation, and to say how keen he was to see it arriving and to see it arriving in time for the Rugby World Cup.
Well, Labour supports this legislation. My colleague the Hon Maryan Street said it was OK, and therefore that is kind of how it is. So there is not going to be any difficulty in getting this legislation through the House today. But it is time to ask some questions of the Government. I am sorry that I am speaking after the Hon Maurice Williamson, because he is very good at answering questions. However, he cannot take a second call, and he might be good enough to give answers to questions, such as he knows them, to another National speaker in order that we can have these questions answered. Here are the questions.
Question one is probably a bit unanswerable, but here it goes. What took the Government as long as this?
It is a toughie. The Hon Maurice Williamson—[ Interruption] There is a person at the back of the House—
Rowdy little number. I ask what took the Government as long as this, because the legislation came back to the House 2 years ago, and since that time all manner of legislation has passed, but not this. What took it as long as this? And that is a hard one, as Maurice Williamson said. I think it is the hardest question. He might like to give an answer to a subsequent National speaker.
The second question concerns prosecutions. In September 2009 a Ministry of Economic Development official made two comments in a press statement of 24 September 2009. The first was that the ministry would be trying for more prosecutions, so that the offences would have the desired deterrent effect. “No-one is going to be put off”—this is the intellectual property team senior analyst, Mr George Wardle—“trading in counterfeit goods until there are a few prosecutions.” So that was the ministry’s position, and it seems to be a reasonable one. “We have a serious commitment”, says a Customs Service operations manager, Mr Dave Meredith, one of the Minister’s officials, “to intellectual property rights goods now and that’s going to get more intense when we can investigate and prosecute. We will be seeking to make a deterrent and we will be attacking it straight on.” I am reading verbatim the prosecutorial sentiments of officials from the Customs Service and from the Ministry of Economic Development. That was said 2 years ago, in September 2009. They had just witnessed the legislation coming back into the House, and presumably were expecting it to pass into law.
They also said, and here is another reading from the same press statement, “There were no prosecutions under the 2002 Trade Mark Act.” I am assuming that that legislation was regarded by officials as being insufficient, presumably because it is out of date, to effect a prosecution, and that they were looking for prosecutions once the new legislation came into place. So the second question is, did any prosecutions occur between September 2009 and September 2011? My guess is that they did not. So we have Government members standing up and saying they are terribly keen on protecting copyright, terribly keen on promoting trademarks, and terribly keen on ensuring that this is not a victimless crime and the victims are therefore protected—but not passing the legislation, even though they knew that the previous legislation was not able to be enforced.
My third question is this: how come, on the day before the New Zealand against Tonga match kick-starts the Rugby World Cup, we think we can pass this law on to the law books and make it work? Surely all of the counterfeit goods that will be sold during the Rugby World Cup have already come across our border. Surely all of the interceptions that could have taken place have taken place. Surely if there are counterfeit goods being sold because of the Rugby World Cup, they are being sold today, were being sold yesterday, and, actually, will be sold tomorrow. Tomorrow this legislation may not have received the Royal assent. The Governor-General may be busy. The officials may not have finished tidying it up. Typically they have to shift semicolons around for a few days before legislation is sent for the Governor-General to offer the Royal assent. So it seems to me that this legislation will not become law for at least some days yet.
I think the idea that we are passing this legislation now because it is timely is fatuous. I think the Government is making it up. I do not think the passage of this legislation has anything to do with the Rugby World Cup. What I think—
What would the member for Waitaki like to offer by way of an explanation? Will she be able to take a call? Will the good lady take a call and explain why it is that 24 hours before the Rugby World Cup gets under way, this legislation will complete its third reading and that at any time in the previous 2 years it would not have been necessary, because the Rugby World Cup had not started—
I am grumpy? I am grumpy? I am merely asking questions. I am merely asking the dear lady questions. I would be interested to see whether she can answer them. In fact, I might resume my seat presently. That is a good idea, is it? I will do that. I will resume my seat presently, and let us see whether the member for Waitaki will get up and offer joyous answers to these questions. I would love to hear what they are.
I think it is fair to say that I am somewhat surprised to find myself on my feet at this point. I would have thought that Government members would have a little bit more to say about this important legislation, but never mind. They are obviously giving somebody somewhere some time to go away and ponder the important, interesting, and probing questions posed by my colleague the Hon Pete Hodgson. I think they were excellent questions—
Maurice Williamson said he prefers multiple-choice questions. Maybe the answers are A, C, D, C, A, C, D, and C. I do not know. They are usually the answers that got most people through fifth form—or they did back in my day. Fifth form does not even exist any more these days.
We are on the third readings of the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2). Labour originally introduced this legislation, and we are happy to continue supporting it. It has been described by Maryan Street as being OK legislation. They are not bills that we are showing a huge amount of enthusiasm for, but they are those technical bills that are very, very important to ensure that things keep happening, that our economy keeps moving, and that in this age of the global economy and global trade New Zealand is able to participate in the global economy as a receiver of goods across our borders, and to ensure that the goods we receive and that New Zealanders purchase within New Zealand are of high quality and are counterfeit goods as rarely as possible. The bills ensure that we are able to protect our goods that we send offshore, as well as our intellectual property, our ideas, and all the things that we send out into the world as traders in the global market.
This legislation was originally a Labour bill, and we are happy to support it. In fact, the original bill has been broken into two bills that further New Zealand’s commitment to building international trade rules, which we all know are vital to ensuring that trade is both fair and free. We know in this day and age that people are much more conscious about where their goods come from and about the workplace relations and the employment laws under which people who are making those goods labour. By ensuring that they are buying the genuine article rather than a counterfeit article, people have a much better idea as to where those goods were made, who made them, and under what conditions they were made. That is important to consumers these days.
It is also very important to know that the environmental practices of the companies that are manufacturing these goods are satisfactory and just. People purchasing furniture—and I used this example when we were talking about the National Animal Identification and Tracing Bill the other day—want to know that it has not come from rainforest timber or some operation that is engaging in deforestation. They want to know that that timber is sustainable, and they want to know of the other environmental impacts—the impacts of transport, the impacts of any chemicals that are being used, and all the other potential impacts of manufacturing any type of goods. People have a much better opportunity to trace those goods if they are the genuine, trademarked article, as these bills allow us to enforce. They allow us to enforce the treaties that ensure that those trademarks are robust.
The legislation will, as I said, enable innovative New Zealand companies to more easily protect their trademarks in multiple jurisdictions offshore. We know that all countries and all companies in some jurisdictions struggle to be able to ensure that their trademarks are protected and that, in fact, the local government and local jurisdiction do not actively allow people in those jurisdictions to engage in counterfeiting. The bills enable the Ministry of Economic Development and the Customs Service to more easily enforce criminal offence provisions by providing powers such as entry and examination without a warrant, as well as entry and search under a search warrant.
I found Maurice Williamson’s contribution to the debate to be most fascinating. He discussed the impacts of counterfeiting, the enormous level of counterfeit product that is available around the world, and the projected growth of that product. Indeed, allowing our economic development and customs officials greater scope to enforce the provisions we have to enable trademark and copyright enforcement is an important aspect in trying to curtail that international trade in counterfeit products. The bills expressly provide that the police have the same powers as enforcement officers, and that is an important aspect in that enforcement, as well.
It is important that New Zealand plays its part and is leading some of the areas of standards development in this area. Obviously, as a nation that relies on trade and exports, it is important that we are a leader in this field, and that we are seen to be a leader in this field. Harmonising our laws with international standards makes good sense. I think it is fair to point out that we are not exactly the first country to be signing up to most of these treaties; most of these treaties have long lists of States that are members of the treaty. Even though really we have been practising the terms of those treaties for some time, it has taken us a little while—and Pete Hodgson questioned what has taken us so long—to officially ratify those treaties and to bring them into law. Counterfeit trade can produce a significant amount of money, which is attractive to criminal organisations looking to fund more serious illicit trades. That is another important reason why we should be clamping down on this.
As other members have discussed, by introducing these two laws we are essentially ratifying three treaties and protocols. The first is the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol), which provides a system that simplifies the procedures required for a trademark owner to protect their trademark overseas. Joining the Madrid Protocol will provide New Zealand trademark owners with the possibility of having their trademarks protected overseas by filing one single application for the registration of a trademark with the Intellectual Property Office of New Zealand, and designating one or more overseas countries that are members of the Madrid Protocol where protection is sought. Overseas trademark owners would also be able to use the Madrid Protocol to protect their trademarks here in New Zealand.
Joining the Madrid Protocol will also simplify the subsequent management of overseas-registered trademarks. It is possible to renew or record subsequent changes to the trademark registration in each country using the Madrid Protocol through a single procedural step, rather than making a request directly in each country. The legislation amends the Trade Marks Act to facilitate the implementation of the international registration regime for trademarks under the Madrid Protocol, including providing for regulations to be made for the purpose of giving effect to New Zealand’s obligations under the Madrid Protocol. This is a streamlining process to ensure that people who want to register their trademarks internationally are able to do it simply, without too much fuss or bother. These things are never entirely simple, but this is a method of ensuring that it is easier than it might otherwise be.
The other agreements that we are signing up to are the Nice agreement and the Singapore treaty. The Nice agreement provides a classification system for goods and services for the purposes of registering trademarks, and the Singapore Treaty on the Law of Trademarks aims to make national trademark registration systems more user-friendly, and to reduce the business compliance costs for trademark owners. All of these agreements are making the business of registering trademarks, both here in New Zealand and internationally, much simpler. They allow New Zealand to engage in global economies, and for that reason Labour is very, very happy to support the continued passage of this legislation.
Tēnā koe, Mr Assistant Speaker Robertson. The Māori Party is happy to support this legislation. The consultation that we have been able to have with those who have expertise and experience in the field of intellectual and cultural property suggests that there is low risk from this legislation and that it is, in fact, worthy of our support.
The legislation establishes a mechanism to reduce the likelihood of New Zealand being used as a go-between to avoid other States’ privacy laws. There are also provisions to ensure that personal data originating overseas and sent to New Zealand is subject to our privacy protection. We believe that the commitment to the protection of personal data, not only domestically but internationally, would highlight to other Governments that we take the protection of privacy seriously.
It has also been very positive that the suggestions that came up through the select committee process have been taken into account. It reminds us and reinforces the view that good law is law that is shaped by, and responsive to, the views of the public. In this legislation, for example, the public law committee of the New Zealand Law Society recommended adding a reference in the legislation to international agreements, guidelines, or principles that are relevant to trans-border data flows. This would include incorporating the OECD guidelines directly into the legislation. The recommendation was agreed to by the Foreign Affairs, Defence and Trade Committee and the necessary amendments were proposed. This is exactly how the legislative process should work, and it reminds us of the importance of our Parliament—with a Government that insists that other countries be democratic—being seen to be a democracy also.
The key issue for our discussion in reference to this legislation is around the importance of international relationships. The aim of the legislation to accede to the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks means that, basically, we are establishing a context for considering a global trademark. The opportunity to also accede to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as well as to ratify the Singapore Treaty on the Law of Trademarks, is one that we fully support. We do so because we see a global language, a relationship with other nations, as an essential opportunity to build respect and understanding across the globe. I have to say that it is particularly timely, on International Literacy Day, that we are acting in a way that is consistent with our global counterparts. It is extremely positive that this Parliament will be giving effect to commitments that are consistent with international practice.
It is from such a basis that we hope to establish trade relationships with other first-nation peoples. The bill may provide benefits to Māori business owners wanting to apply for trademarks, particularly if they want to trade internationally. We also see support for this bill as being totally consistent with acceptance of the United Nations Declaration on the Rights of Indigenous Peoples, which we see as one of the hallmark successes of the Māori Party relationship with the Government in this term of Parliament.
Again, the timing is interesting. It is almost 4 years to the day since 13 September 2007, when the Labour Government created such outrage amongst tangata whenua in its opposition to the Declaration on the Rights of Indigenous Peoples. That one act, along with the infamous raids undertaken under the auspices of Operation Eight—the raids in Ruātoki—was certainly part of the context that lead to Māori deserting the rank and file membership of the Labour Party. It is a history that was brought home to us vividly yesterday with the not surprising revelations that charges would be dropped due to evidence being inadmissible. We must not allow these events to be forgotten.
I raise a point of order, Mr Speaker. This is the third reading of the bill, and generally that is a fairly tight debate. I think the member has strayed some distance from the bill itself, and I request that you pull her back to order.
Well, it is not so tight, in terms of the fact that the third reading is often a summing up of what goes on in the Committee stage. I am listening to the member and I am starting to have concerns, so I ask the member to address the trademarks legislation. Thank you.
I must say that we are disappointed that the legislation does not include the Mātaatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples and that it was overlooked in the evolution of this legislation. We need to see Māori-specific indigenous knowledge and intellectual property protection legislation that gives due regard to the unique value of the indigenous brand. We are now calling for a proactive approach to supporting Māori intellectual property protections. We want to support indigenous declarations on cultural and intellectual property, including the Mātaatua declaration, and their expression in domestic and international law.
Finally, I have to place on record that this House must acknowledge the inevitable refinement of policy that will occur following the Government’s response to Ko Aotearoa Tēnei, a report of the Waitangi Tribunal into the claims concerning law and policy affecting Māori culture and identity—that is, Wai 262. This report has been uppermost in all of our minds this week with the sad passing of the kuia who was one of the original claimants, Saana Murray.
The Wai 262 report described two categories of taonga related to cultural and intellectual property, which trademarks reflect. A taonga work is a creation of a pre-existing and distinctive body of knowledge, values, and insights knows as mātauranga Māori. A taonga-derived work is something that is inspired by mātauranga Māori but is not a taonga in itself. It does not reflect traditional narratives and has no spiritual significance. It may look like it contains elements of Māori design, but it has no connection to the ancestors. An example of a taonga-derived work could be the koru on the tails of the Air New Zealand planes, similar commercial logos and motifs, and purpose-written waiata for schools and workplaces.
The Wai 262 report called for new standards governing the use of taonga works and mātauranga Māori with a mechanism that allows kaitiaki to object to offensive or derogatory use or commercial exploitation without consent. Also recommended is the establishment of an expert commission with specialists in intellectual property law, commerce, science, and stewardship, consisting of both Māori and Crown members.
I touch on some of these issues canvassed in the Wai 262 report, Ko Aotearoa Tēnei, as I believe that they will be highly relevant to the future implementation of this bill. At the very least, there should be a qualifier that will give legislators and policy makers a reminder to keep alert to the consequential changes that will be required to address the Wai 262 findings. With these few comments in mind, we will support this bill.
It gives me great pleasure to rise to speak in the third readings of the Trademarks Amendment Bill and the Copyright Amendment Bill (No 2). I will pick up on a couple of points that have been raised by previous speakers in this debate. They relate to the work that the Foreign Affairs, Defence and Trade Committee did on this legislation when it was first sent to our committee. Points have been made by two Labour members about some aspects of the legislation being brought into being through Order in Council. They were referring specifically to clause 2(2) of the original bill, which provides for 10 clauses—very important clauses in the legislation—to be brought about by Order in Council. The Hon Maryan Street picked up on the point that the committee’s commentary on the bill urged the Ministry of Economic Development to implement all aspects of the legislation expeditiously. The member used that as a bit of an excuse or an opportunity to try to raise a rather weak attack on the Government, in terms of timeliness.
I suggest that that member has rather missed the point. I recall very well the discussion on those 10 clauses in the original bill at the select committee being about such matters as the appointment and powers of enforcement officers and customs officers. I recall very clearly in the select committee—the member may not and her colleague may not, but I recall very clearly—that we had a long and careful discussion about the powers of customs officers. It did seem to members of the committee present—and I know that my colleagues in the House recall it very well—that that was the focus of our discussion. I suggest to the members opposite that the powers of enforcement officers and customs officers are of critical importance. I suggest to that member that we dealt with that issue very thoroughly.
Further to that, we were concerned that the explanatory note of the bill as it was sent to our committee did not adequately explain just why those 10 clauses were to be enacted through Order in Council and would not be in the body of the legislation. I suggest to members opposite that that was the reason why we had concern for that part of the legislation, not any aspect of when the legislation might be read in Parliament.
I note also that this is a busy Government. This is a busy Government that has an awful lot of work on its plate picking up after 9 years of neglect by the previous Labour Government. This Government has undertaken a long body of work.
I also pick up on the Hon Pete Hodgson, who spent a lot of grumpy time, I have to say, in his third reading speech asking a number of questions and table-thumping about why he was not going to get the answers. I suggest to that member that he had a lot of opportunity during both the select committee consideration of this legislation and also the Committee of the whole House stage of this bill to ask those questions. If it has only just now occurred to that member to ask those questions, I suggest that he might have taken a little bit more care about the legislation on its way through our very good select committee process.
Having made those couple of points, I am also very pleased to see this Government putting through this legislation in time for the Rugby World Cup. The eyes of the world are upon us now. It is most important that we have the legislation in place now to cope with the challenges that the Rugby World Cup is bringing upon us. The Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2) will make life easier for the New Zealand Customs Service and New Zealand business, while cracking down on people who import and sell counterfeit goods. As the excellent Hon Maurice Williamson noted, it is all very well to bring into the country a pair of cheap sneakers with some brand name on that will ultimately fall apart within a few days, but that does not do the New Zealand economy any good, and it certainly does not do the good name of the company any good. This legislation overcomes that.
It also gives effect to a number of treaties for the New Zealand Government: the Madrid protocol, the Nice agreement, and the Singapore treaty. I will not use the time of this House to rehearse the impact of those treaties; they have been well canvassed in the House. With those few words I commend the bills to the House.
I would like to speak in the third reading debate of the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2). This is more quality, Labour-initiated legislation that this Government eventually adopted as its own, although it has taken a rather long time to get to this point, which has been well canvassed. It is not bad legislation, and it deservedly has the support of the House. Although the subject matter might appear to some to be dry, we should not underestimate the importance of this legislation. A number of my colleagues have addressed that. Ensuring that our intellectual property law and enforcement measures are appropriate and effective is fundamentally important to protecting and promoting a healthy business environment in this country.
I note that my colleague the Hon Maryan Street has pointed out that the landscape in these 2½ or nearly 3 years has changed markedly around this whole issue of intellectual property. It is really important to note that, and I will make some more remarks on that later on. It is important legislation because it harmonises our laws with international standards; it furthers New Zealand’s commitment to building international trade rules, which are vital to ensure that trade is free and fair; and it puts measures in place to deal with the enormous and growing problem worldwide of counterfeit goods. Importantly, it enables innovative New Zealand companies to more easily protect their trademarks in multiple jurisdictions, which is a really important, fundamental thing that this legislation will, hopefully, do.
As most members present are no doubt aware, this legislation has two major functions: to bring the New Zealand trademark law into line with the requirements of the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Nice agreement, and the Singapore Treaty on the Law of Trademarks. And it seeks to enhance the abilities of the appropriate enforcement agencies under the Trade Marks Act and the Copyright Act so that they have the necessary powers to crack down on criminal activity in this area. These international commitments that are being made through harmonising with the treaties are an excellent step forward for New Zealand businesses and rights-holders, but such commitments are effective only if they are supported by good law at home. It is essential that the Government officials have the ability to do their job, especially with the changing landscape of intellectual property infringement. In the last decade the Customs Service has detected a considerable increase in the traffic of counterfeited material into this country, and I think somewhere it is mentioned how much that is. I think the New Zealand Customs Service reported that the volumes of counterfeited goods had risen by over 400 percent since July 2000, with 260,000 items detained by them each year. A number of my colleagues during the debate have talked about that, and it is expected to rise over a wider range of products.
The Ministry of Economic Development has already signalled that the current laws around intellectual property are inadequate for effectively policing this assault. This legislation addresses that concern by giving enforcement officers from the Customs Service and the Ministry of Economic Development greater powers, including the ability to enter and examine premises without a search warrant where there is a suspected breach of the law, and to thoroughly search the premises if a search warrant has been obtained. Those powers are also extended to the police to allow them to carry out their duties with regards to issues like piracy.
The empowerment of Government officials with regard to criminal—criminal—activity is not a decision that should be made lightly. I think it is an issue that the Green MP David Clendon raised during the second reading, and his colleague Keith Locke did so during the select committee process. However, we know—and I think we can be satisfied—that the powers given to the Customs Service and the Ministry of Economic Development are appropriate, considering the work they are required to do. Some in the media painted a picture of a Ministry of Economic Development hit squad making raids on the warehouses of innocent importers, delaying the sale of their products and hurting their profits. Although it is impossible to guarantee that this would never happen in isolated cases, the benefits of a more robust enforcement regime far outweigh those speculative costs.
The protection of intellectual property rights is central to a well-performing economy, and this law will improve the economic environment by ensuring that rights-holders know their intellectual property remains theirs and consumers can have confidence in the quality of the goods and services that they are purchasing. That is really important, and I do want to stress that, because we are talking about criminal activity here for the purpose of counterfeiting goods, pushing them across borders, and then selling them on. That is an issue we need to spend time addressing, and this legislation does that.
This legislation effectively updates present law and brings it into line with the need to address that increased criminal behaviour and the techniques used to breach trademarks and copyright, and the enormous issues with regard to the movement of counterfeit goods across borders. It is commendable that the Government is pushing this, but it does raise an important issue with regard to other legislation that has been before this House recently—in particular the Copyright (Infringing File Sharing) Amendment Bill. It highlights the importance of members of Parliament, members of select committees, and, in particular, Ministers being on top of their briefs, on top of their areas, and being able to grasp the nature of change—in particular, technological change—and the impact it is having on the behaviours of consumers—that is, citizens, and business models. I am referring to the importance of updating legislation to ensure that the law and the regulatory and operational response to breaches of the law are appropriate, effective, and up with the times.
This Government and this Parliament saw the passage of the Copyright (Infringing File Sharing) Amendment Bill, which did not address criminal behaviour. It addressed civil infringement, and an enormous amount of time was spent in the last couple of years trying to work out how to address it. But that bill, which was passed under urgency, focused solely on measures to push vast numbers of New Zealanders who access illegally downloaded share material that they either cannot get any other way or would have to wait for a very long time to access. The distribution channels for that material, whether it is music, movies, TV programmes, or whatever, are locked in the mind-set of the previous century and prefer to turn our kids and ordinary citizens into criminals, rather than change the way their businesses operate to deliver what the market so obviously wants. It is important to have that law, because people should be deterred from illegal behaviour. But it was ridiculous to contemplate disconnecting them from the internet, and it was also ridiculous to introduce it under urgency without taking a wider look at the whole copyright regime.
That is why it relates to this legislation, and what the Government should be doing to encourage new business models emerging in our country or being allowed into our country to distribute content that is affordable in real time.
My point is that with this legislation before us, as with any other legislation that is being updated, changed, and harmonised in relation to other legislation and treaties around the world, we have a responsibility as parliamentarians to bring ourselves up to speed with technology changes and their enormous impact on the way we are conducting many parts of our lives. We have a responsibility to assess all legislation to see what impact the changing technology has on it, and this legislation is no exception. Labour supports it. It was originally our legislation, and we are evolved enough as a party to acknowledge that we must change with the times. Perhaps it is time that the members on the other side of the House acknowledged that too.
Thank you for the opportunity to speak on this very important legislation. There is no doubt that it is fundamental for the viability of the international trading market that intellectual property is appropriately protected and observed. In many respects, that is what this legislation is all about.
I absolutely take the point, made by both Maryan Street and the previous speaker, Clare Curran, that the landscape around intellectual property is constantly changing. That has been the case for hundreds of years, and it will continue to change as we see an increasingly rapidly evolving technology.
As the Hon Maurice Williamson so clearly pointed out, counterfeiting behaviour is becoming more and more of a problem internationally, and it is now impinging on the international business markets to the order of hundreds of billions of dollars, and this situation is getting worse and worse. But not only that, there is also the possibility of threats to public safety. I think he brought up the example of counterfeit helicopter blades. During the submission period A J Park pointed out that that threat was one of the issues, along with the increasingly rapid evolution of counterfeit medicines going right around the world. I think the Hon Maurice Williamson’s example was unusual, but certainly with a lot of mainstream medicines, whether heart medicine, high blood pressure medicine, or blood thinning medicine—a whole variety of medicines—all these things have been tried on, to the detriment of individuals.
Of course, though, underlying this is the protection of intellectual property, and that is why it is so apt and appropriate that we have the amalgamation of those three treaties, the Nice agreement, the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, and, of course, the Singapore Treaty on the Law of Trademarks. I was very interested to note that this aims to make national trademark registration systems more user-friendly, and to reduce business compliance costs for trademark owners. I think it is very salutary that it comes in the name of Singapore. After all, Singaporeans are so well-known for being efficient and effective. In fact, in many respects that is one of their trademarks, and is something that countries like New Zealand have a lot to learn from.
I remember that in the Committee stage the Hon Pete Hodgson quoted Elspeth Buchanan as being someone who had some reservations. She is from P L Berry and Associates, and is someone who has spent 40 years in the industry. I note that one of the areas she was concerned about was the balance of just how much enforcement we have. This legislation, which has now been split into two bills, requires appropriate enforcement, yet excesses of enforcement may go too far. P L Berry and Elspeth Buchanan cite a recent incident with the Customs Service to show where the potential dangers to legitimate New Zealand businesses can be eroded. A shipment was stopped because of a suspicion that it breached a customs notice, but the customs officer was unable to make a formal determination that the products were counterfeits. This caused a delay and, consequently, a whole shipment of goods for Christmas was not delivered on time, much to the disappointment of the business concerned, and much to the disappointment of the recipients.
Like all of the things in this legislation, intellectual property is a dynamically evolving situation and needs to be revised continually, and this Government is doing exactly that. On the other hand, there is a fine balance to how far one goes in terms of enforcement, and I think this legislation has it about right. It is with great pleasure that I commend the legislation to the House.
I was not going to take a call on these bills—the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2)—because they are being handled by David Clendon, who is not able to take a call. But I have been inspired by a number of the comments that people have made.
The Greens are voting for the legislation. We think it is interesting legislation because the issue of trademarks has a lot of underlying issues. One issue, as the previous speaker just touched on, is intellectual property, and I would like to acknowledge the Mātaatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, which was from a landmark, leading hui held in Mātaatua, in that part of the country, where a lot of very important kaupapa were laid down. That had a huge influence, and it was then picked up through Wai 262. Those are landmark, if you like, really fundamental issues that I hope this legislation will be able to take account of appropriately. This country’s unique contribution to the global trademark issue is that this is Aotearoa New Zealand and we have the Mātaatua Declaration and the Wai 262 recommendation. I support the leadership of tangata whenua on intellectual property; it has been a profound leadership.
However, I will address the issue of counterfeit, because it is an interesting word and I think we have had examples of counterfeit and unfair trade. In many ways the Green Party would say that the Trans-Pacific Partnership is another example of unfair trade, and another example of how we are not robust enough in our attitudes towards trade. Although the trademarks legislation will assist with this, there are some fundamental issues it cannot address. However, the legislation does raise this issue in a good way, and it does make us talk about what is a good trademark. We can take something like Te Waka Toi, which has been very, very powerful, and which has assisted Māori artists to export around the world. It is a robust trademark, and that is what this legislation is trying to support—the robustness of any trademark available.
But I will talk about counterfeit goods that are less easy to pick up, and goods that customs officers at the moment do not have the tools to pick up, which may not be covered by this legislation. I hope that I am wrong about that. I guess my experience has been particularly with regard to illegal logging products, and those can be paper products, illegal timber, or all kinds of products containing unsustainable and illegally logged rainforests. I brought a member’s bill before this House 2 years ago—which was immediately voted down—that attempted to give tools to customs officers so that they could actually prevent illegally and unsustainably logged products from coming into New Zealand. The Government voted the bill down in less than 20 minutes and did not even bother to talk about it properly, so I am pleased that trademarks are now being taken seriously. But I am still disappointed that at a time when rainforests and the climate are a crucial issue in the International Year of Forests, we have not made much progress on that issue.
The reason it is important is that counterfeit sandshoes and counterfeit helicopter blades are one thing, but there are a lot of issues that are even more basic. I will use the example of toilet paper. At the moment toilet paper from rainforests is being imported into New Zealand, and, even if it is not counterfeit, I am sure that New Zealanders would feel it was counterfeit if they knew that the Cottonsoft brand of toilet paper has been proven to be connected to the illegal and unsustainable destruction of rainforests. As somebody said—I think it was Iain Lees-Galloway—most New Zealanders have a growing consciousness about where things come from. But if something is called Cottonsoft and it is sold in a Kiwi supermarket, then, until the work is done by the Green Party, Greenpeace, and the World Wildlife Fund for Nature New Zealand, very few people will realise that that particular brand is not a trademark that can be trusted. The issue of trademarks and trusts is quite profound. We know that that toilet paper is not to be trusted because Greenpeace has tested the fibres.
It comes back to what is behind the trademarks, which is: what is the chain of custody? What is the certification that can give us the right to believe that that trademark is actually robust? We have a long way to go with chain of custody and certification around timber products in particular. There is only one certification in the world—and I do agree with comments from other members that we need a global approach to many of these issues, because the global market means that goods move freely between borders. That is why this legislation is important, too. It is important because forest stewardship certification is the only robust trademark in terms of forestry products that New Zealanders can rely on. We have organisations like Asian Pulp and Paper that are cutting down rainforests to make toilet paper, and selling it to New Zealanders who do not know about it. We have that happening because we do not yet have a regulatory framework to stop that from happening.
I will be persisting in this issue, as well as the trademark legislation, because I believe that while importers of things like toilet paper are using fake certification, it is not always being defined as counterfeit, and I am not sure that it will be picked up by this bill. That is the problem—a lot of counterfeit things are given what I call “greenwash” certification, or bogus certification. There are all kinds of palm plantation products, and all kinds of certification names and acronyms that people use—sometimes invented by the companies themselves, sometimes with some degree of global scrutiny, but often not at all robust—to claim that these products are actually genuine. They get these lovely trademarks with pictures of animals on them, they are all called natural and they have got this so-called certification. But if one goes into the timber stores of this country, or the retailers, and tries to find out where these products have actually come from, one will see a trademark but it is often bogus. Some stores have made huge progress; we have worked with Greenpeace for a long time, and we have seen many stores step up to the plate.
This is an issue that the New Zealand Imported Tropical Timber Group and New Zealand Forest Owners Association have been working on with the Green Party for some time, because we are passionate that any trademark is a real trademark—that people cannot make claims that they are producing products that have been logged sustainably from the rainforests of South-east Asia and the Pacific when they are not. I asked a question in the House today about the very issue of West Papua, where rainforests are being cut down and their products supposedly certified, but the products are actually counterfeit in terms of labelling. We need to close the gap. We need to stop the cowboy traders who are using a bloodthirsty trade—because people die as a result of the counterfeit trading in illegal logging products; people in West Papua die as a result of standing up to protect those rainforests—and we need a robust regulatory framework such as the Lacey Act, which has been brought in in the United States, and which makes the producers of timber and the people who retail timber products within countries accountable, not just at the border.
It is good that this bill addresses the issues of customs, but I am not sure that the issues I have just talked about will be addressed, because this issue is about so much more than just a trademark. People can so easily manipulate other people into believing that something is sustainable and legal. Within this country we can have a certain amount of control and jurisdiction, but when we go outside our borders we find that it is an absolutely wild scene out there, particularly in relation to paper products and illegal logging. I was shocked to find that people in New Zealand in the 21st century are buying toilet paper made out of rainforests, when we know that without rainforests this planet will not survive, and when we know that people and 132 species a day are being lost because of this.
We will be supporting the trademark and copyright legislation, but we ask for a deeper debate and a more robust definition of what is counterfeit. We must go below the surface; we must stand up for fair trade dealings. This is not about supporting free-trade deals; it is about saying we need to go through a chain of custody. We need to be able to work right back from the retailer of products in Aotearoa New Zealand to the land where those products come from. The day will come when we will be able to pick up an item and trace on it exactly who produced it, but we will need legislation in the meantime, and we will have to make those changes very robust because otherwise people will lie and people will die. That is the most important point I will make about the illegal and bloodthirsty trades that counterfeit as being genuine on this planet at this time. But we do support the bill, and we do see it as progress.
I rise to commend the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2) to the House.
I am very pleased to conclude the third readings of the Trade Marks Amendment Bill and the Copyright Amendment Bill (No 2). I want to come back to the important context that sits behind the passage of these two pieces of legislation that the Minister of Commerce has brought before the House. Part of that is the fact that one of the key priorities of the Government is actually enabling better cooperation and more consistent legal cooperation across the world. Basically what that does is reduce the costs of New Zealanders being able to trade in the global market. More specifically, another priority for the Government is, of course, to work far more closely with our Australian neighbour in the creation of a single economic market which, therefore, allows businesses to trade more simply and more seamlessly.
In terms of the detail of these two bills, I will not take a long call because we have heard quite a lot about it, but I think it is worth pointing out, in terms of looking at the size of this world problem in counterfeit trade, that the World Trade Organization actually estimates that the size of the counterfeit trade across the world is at least 5 to 7 percent of all world trade. It is a significant issue and this legislation will take us a step forward in terms of being able to reduce the illegal trade. Because I was absolutely staggered and enthralled by the comments that Minister Williamson made around the harm that some of these counterfeit products cause, I thought it was worth going back to the harm that fakes can cause. There have been a number of exposés in particular around counterfeit production of insulin drugs, which of course we know has disastrous effects and, with growing rates of both type 1 and type 2 diabetes, is a significant issue across the world. Our local GNS Science scientists were the ones who discovered what is in some of the counterfeit Viagra products. Minister Williamson confirmed it by his own computing device—of course an original, not a fake—to say that not only did the fake Viagra contain bird droppings but there were bat droppings as well, and other nasty ingredients like arsenic, hair, charcoal, and mercury. Those are some fairly good reasons why we would like to make sure we are able to crack down on some of these fakes.
I will not go through the details of the bill. On the other areas like the enforcement officers, my colleagues Hutchison and Dean, members of Parliament, spoke at length about the international treaties. That is why I am very pleased to finish this third reading on these two very important bills. It is another step forward as National creates a much stronger economy.